Citation Nr: 0305387
Decision Date: 03/21/03 Archive Date: 04/03/03
DOCKET NO. 99-22 297A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a compensable disability rating for sinusitis.
(The issue of entitlement to disability evaluation in excess
of 10 percent for a fungal infection of the nails of the
feet, toes, and fingers will be the subject of a later
decision.)
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. L. Wight, Counsel
INTRODUCTION
The veteran served on active duty from June 1992 to December
1995.
This case comes before the Board of Veterans' Appeals (Board)
by means of a February 1992 rating decision rendered by the
St. Petersburg, Florida, Regional Office (RO) of the
Department of Veterans Affairs (VA). In this decision, the
RO granted service connection for a fungal infection of the
toenails and both thumbnails. A noncompensable disability
evaluation was initially assigned for this disability. The
veteran subsequently perfected timely appeal of the
disability evaluation assigned for this disability.
The veteran has also perfected a timely appeal of a May 1998
rating decision that denied, in pertinent part, a compensable
evaluation for his service-connected sinusitis.
In August 1996, the RO issued a rating action that awarded a
10 percent disability rating for the veteran's fungal
infection of the toes and fingers. The United States Court
of Appeals for Veterans Claims (known as the United States
Court of Veterans Appeals prior to March 1, 1999)
(hereinafter, "the Court") has held that a rating decision
issued subsequent to a notice of disagreement which grants
less than the maximum available rating does not "abrogate
the pending appeal." AB v. Brown, 6 Vet. App. 35, 38
(1993). Accordingly, the veteran's claim for a rating in
excess of 10 percent for his service-connected fungal
infection remains open.
After a review of the claims folder, the Board has determined
that further development of the evidence is necessary to
adequately ascertain the severity of the veteran's service-
connected fungal infection in light of recent changes in the
relevant diagnostic criteria. See 67 Fed. Reg. 49,590-49,599
(July 31, 2002). Thus, the Board is undertaking additional
development on that issue pursuant to authority granted by 38
C.F.R. § 19.9(a)(2) (2002). When development is completed,
the Board will provide notice of the development as required
by Rule of Practice 903. 38 C.F.R. § 20.903. After
providing the notice and reviewing any response thereto, the
Board will prepare a separate decision addressing this issue.
FINDINGS OF FACT
1. VA has made all reasonable efforts to assist the veteran
in the development of his claim and has notified him of the
information and evidence necessary to substantiate his claim
for a compensable rating for his sinusitis.
2. The veteran's sinusitis with an allergic component is
manifested by complaints of headache, facial pain,
congestion, sneezing, watery eyes, itchy nose, and itchy
eyes.
3. The veteran's sinusitis is not presently manifested by
one or two incapacitating episodes per year, has not required
prolonged antibiotic treatment; nor is there probative
evidence of or three to six nonincapacitating episodes
characterized by headaches, pain, and purulent discharge or
crusting.
CONCLUSION OF LAW
The criteria for a compensable evaluation for chronic
sinusitis are not met. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. § 4.97, Diagnostic Code 6513 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset, the Board must consider the impact of the
Veterans Claims Assistance Act of 2000 (VCAA) on the
veteran's claim. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5126
(West 2002); McQueen v. Principi, 14 Vet. App. 300 (2001)
(per curiam). The law provides that VA has a duty to assist
veterans and other claimants in developing their claims for
VA benefits. The Board notes that the veteran's application
for the benefits at issue is complete.
The duty to assist requires VA to make "reasonable efforts
to obtain relevant records (including private records)."
38 U.S.C.A. § 5103A. The RO has obtained pertinent VA
medical records identified by the veteran. The evidence does
not show, nor has the veteran identified, the existence of
any additional pertinent medical records that have not been
obtained. Accordingly, the Board finds that the RO has made
reasonable attempts to obtain medical records referenced by
the veteran, and that VA's duty to assist the claimant in
obtaining pertinent medical records is satisfied.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2002).
The VCAA also provides that upon receipt of an application
for VA benefits, VA shall notify the claimant and his or her
representative, if any, of any information, and any medical
or lay evidence, not previously provided that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159(b). VA must inform the veteran whether she or VA
bears the burden of producing or obtaining that evidence or
information. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 38
C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183
(2002). By various statements of the case and supplemental
statements of the case issued in this appeal as well as by
letter dated in January 2002, the veteran was informed of
what evidence was required to establish a compensable
evaluation for his service-connected sinusitis. He was
informed of what information required from him, what
information VA would obtain, and what had been done to assist
him with his claim. Accordingly, the Board finds that the
duty to inform the veteran of required evidence to
substantiate his claim has been satisfied. 38 U.S.C.A.
§ 5103(a).
The duty to assist also requires medical examination when
such examination is necessary to make a decision on the
claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). In the
present case, the veteran has been afforded VA examinations
to assess the severity of his service-connected sinusitis.
These medical examinations, in combination with the other
medical evidence of record, are sufficient to make a decision
on the claim.
VA has completed all development of this claim that is
possible without further input by the appellant. The
appellant has been duly notified of what is needed to
establish entitlement to the benefits sought, what the VA has
done and/or was unable to accomplish, and what
evidence/information he can obtain/submit himself.
Accordingly, the Board finds that the requirements set forth
in the VCAA with regard to notice and development of the
appellant's claim, have been satisfied, and that returning
the case to the RO to consider the requirements of VCAA would
serve no useful purpose, but would needlessly delay appellate
review.
Evidentiary Background: Service medical records show the
veteran sought treatment with complaints of earache and sinus
congestion in November 1994. Objective findings showed fluid
in the ears with the throat normal. An assessment of
sinusitis was rendered.
In January 1996, the veteran was afforded a VA general
medical examination. He reported a history of sinusitis with
post-nasal drip. His ear canals were clear and the eardrums
were normal. There was no perforation or discharge. Chronic
sinusitis was diagnosed.
By rating action dated in February 1996, the RO awarded
service connection for, inter alia, chronic sinusitis. A
noncompensable disability evaluation was assigned.
A March 1998 outpatient treatment record shows that the
veteran complained of constant sinus problems for month.
Specifically he complained of sneezing, watery eyes,
rhinitis, and itchy nose and eyes. Pertinent diagnosis was
allergic rhinitis.
In April 1998, the veteran complained of postnasal drip and
that his nose ran constantly. He eyes turned red and were
bloodshot with dry and blurred vision. It was noted that
his nasal cavity contained fluid and was swollen and
"boggy." He had pain to his frontal sinuses. He was to
continue with his antihistamine.
The veteran filed a claim for an increased rating for his
service-connected sinusitis in April 1998. A compensable
evaluation for this disability was denied by means of a May
1998 rating action. The veteran subsequently appealed this
decision to the Board.
An April 1999 VA treatment record shows that the veteran had
dark areas below his eyes and excess lymphoid tissue on his
posterior pharynx. His tympanic membranes were normal. An
assessment of chronic allergic rhinitis which occasionally
evolved into sinusitis was rendered. This disability was
being controlled by antihistamine use with nasal steroids.
In October 1999, the veteran was afforded a VA examination.
He complained of constant intermittent non-purulent and clear
rhinitis. He treated his sinus condition with a nasal
steroid and the rhinorrhea lasts approximately one to two
hours. He also used an antihistamine. He reported some
facial pain in the upper face and headaches intermittently.
The examiner noted that the veteran suffered from
intermittent rhinorrhea and rhinitis that seemed to respond
to steroid nasal sprays and antihistamines. His symptoms
were not associated with position change, activity, meals, or
Valsalva maneuvers. His symptoms were consistent with
allergic rhinitis. He had a nasal septal perforation of
unknown etiology that certainly contributed to his symptoms.
A December 2000 VA outpatient treatment record shows that the
veteran complained of pressure in both ears. He sounded
nasally congested and felt as though he was in an airplane.
In February 2001, the veteran testified at hearing before a
RO hearing officer. He reported that he received VA medical
treatment in Miami. He was taking medication for his
sinusitis, but was unable to take it while working as it made
him drowsy. He reported that he had headaches and pain in
his eyes that he associated to his sinus condition.
The veteran was afforded a VA nose, sinus, larynx, and
pharynx examination in August 2001. He reported intermittent
clear nasal discharge and headaches. He had been using
Vancenase with minimal relief. His nasal discharge was not
related to eating, although it might be seasonal. He had
never had sinus surgery. X-rays in 1996 showed bilateral
maxillary sinusitis. On physical examination, he did not
exhibit any facial swelling or external nasal deformities.
Prior to and after nasal decongestion, he had adequate
airways bilaterally. Neither pus nor polyps were seen on
examination. An impression was chronic sinusitis, which may
have an allergic component. An August 2001 CT scan of the
sinuses was normal. All paranasal sinuses were clear of soft
tissue and the nasal cavity was normal with no septal
deviation. Osteomeatal units were clear of any soft tissue.
Likewise, the visualized orbits, brain, and other soft
tissues were normal.
In October 2001, the veteran was seen by a VA primary care
provider. He had no complaints, but reported a history of
headaches with nasal discharge three times a month. A review
of his systems was positive for chronic itchy nose,
discharge, or frequent sneezing. Nasal examination showed
the nose to be without edema or exudates. No diagnosis was
given.
Legal Criteria: The Board notes that disability evaluations,
in general, are intended to compensate for the average
impairment of earning capacity resulting from a service-
connected disability. They are primarily determined by
comparing objective clinical findings with the criteria set
forth in the rating schedule. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. Part 4, (2002).
In evaluating the severity of a particular disability, it is
essential to consider its history. Schafrath v. Derwinski, 1
Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2. However, where
entitlement to compensation has already been established, and
an increase in the disability rating is at issue, the present
level of disability is of primary concern. Though a rating
specialist is directed to review the recorded history of a
disability in order to make a more accurate evaluation, the
regulations do not give past medical reports precedence over
current findings. Francisco v. Brown, 7 Vet. App. 55 (1994).
The veteran's sinusitis is presently evaluated under
Diagnostic Code 6513. Under these criteria, a noncompensable
evaluation is warranted for chronic maxillary sinusitis that
is detected by X-ray only. A 10 percent evaluation
contemplates the presence of 1 or 2 incapacitating episodes
per year of sinusitis requiring prolonged (that is, lasting
for 4 to 6 weeks) antibiotic treatment, or 3 to 6
nonincapacitating episodes characterized by headaches, pain,
and purulent discharge or crusting. In order to warrant a 30
percent evaluation, there would, of necessity, need to be
demonstrated the presence of 3 or more incapacitating
episodes per year of sinusitis requiring prolonged (that is,
lasting from 4 to 6 weeks) antibiotic treatment, or more than
6 nonincapacitating episodes per year of sinusitis
characterized by headaches, pain, and purulent discharge or
crusting. An incapacitating episode of sinusitis means one
requiring bed rest and treatment by a physician. 38 C.F.R.
§ 4.97, Diagnostic Code 6513 (2002).
Analysis: The veteran contends that his service connected
sinusitis is more severe than presently evaluated and that a
compensable evaluation is warranted for this disorder. For
the reasons set forth below, the Board finds that his
contentions are not supported by the evidence. Accordingly,
his claim fails.
Post service VA treatment records show that the veteran has
complained of sinus problems including headache, facial pain,
congestion, sneezing, watery eyes, itchy nose, and itchy
eyes. He has used antihistamines and nasal steroids for this
condition which has variously been diagnosed as sinusitis or
allergic rhinitis. However, while the evidence shows that
the veteran has received medical treatment, the evidence does
not show this sinusitis has ever been incapacitating as that
term is defined by regulation. While he has been prescribed
medication for this disability the evidence does not show
that his sinusitis results in incapacitating episodes
requiring bed rest or treatment by a physician. Likewise the
evidence does not show prolonged antibiotic treatment.
Similarly, despite the veteran's complaints of headaches with
nasal discharge three time a month, the evidence does not
show that his sinusitis results in three to 6 non-
incapacitating episodes per year character by headaches,
pain, and purulent discharge or crusting. While the veteran
has complained of pain and headaches, the evidence does not
show that he has purulent discharge or crusting. The October
1999 VA examination notes that he had an intermittent non-
purulent and clear rhinitis. After use of a nasal steroid,
the rhinorrhea lasts approximately one to two hours.
Likewise, the August 2001 examination report notes that the
veteran had a clear nasal discharge with intermittent
headaches. He did not exhibit any facial swelling. Prior to
and after nasal decongestion, he had adequate airways. Based
on the foregoing, the Board finds that the criteria for a
compensable evaluation under Diagnostic Code 6513 are not
met. In arriving at this conclusion, consideration has been
given to the doctrine of affording the veteran the benefit of
the doubt; however, the clear preponderance of the evidence
favors a denial of his claim and the benefit of the doubt
doctrine is therefore not for application.
ORDER
A compensable evaluation for the veteran's service connected
sinusitis is denied.
____________________________________________
C.W. Symanski
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.